| People v Robinson |
| 2010 NY Slip Op 02995 [72 AD3d 1277] |
| April 15, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AlphonsoRobinson, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered March 27, 2008, upon a verdict convicting defendant of the crime of criminalpossession of a weapon in the third degree.
Following a controlled drug buy from defendant made by a confidential informant in asecond-floor apartment located at 41 Catherine Street in the City of Albany, police obtained awarrant to search the premises and found a handgun and some marihuana therein. Defendant wasthereafter charged with criminal possession of a weapon in the third degree, criminal possessionof stolen property in the fourth degree, criminal possession of marihuana in the fourth degree andcriminal sale of marihuana in the fourth degree. County Court granted defendant's subsequentmotion to suppress identification testimony of the confidential informant, as well as the evidenceseized from his person at the time of his arrest, but denied his motion to suppress the evidenceseized from the apartment.[FN1]Following a jury trial, defendant was convicted of criminal [*2]possession of a weapon in the third degree and was sentenced, as asecond felony offender, to a prison term of 3½ to 7 years. Defendant appeals.
Defendant initially contends that the conviction is not supported by legally sufficientevidence and the verdict is against the weight of the evidence because the People did notestablish that he constructively possessed the handgun. Another resident at 41 Catherine Streettestified at trial that defendant spent a substantial amount of time in the apartment in which thehandgun was found, and police officers testified that they had observed defendant coming andgoing from 41 Catherine Street on numerous occasions. Further, during the booking processdefendant gave his residential address as 41 Catherine Street. This evidence was sufficient toestablish that defendant exercised dominion and control over the apartment (see PenalLaw § 10.00 [8]; People vEdwards, 39 AD3d 1078, 1079 [2007]). The People also presented evidence that DNAsamples taken from the handgun were consistent with defendant's DNA, from which an inferencecould be made that defendant had physically possessed the gun at some point in time. Althoughdefendant offered the testimony of his codefendant to cast doubt on the extent to whichdefendant inhabited the apartment, this testimony presented a credibility issue for the jury toresolve (see People v Edwards, 39 AD3d at 1080). Thus, the evidence here is legallysufficient to permit the jury to conclude that the elements of the crime were proven beyond areasonable doubt and the verdict is not against the weight of evidence (see Penal Law§ 265.01 [1]; § 265.02 [1]; People v Roberts, 63 AD3d 1294, 1296 [2009]; People v Rivenburgh, 1 AD3d696, 699 [2003], lv denied 1 NY3d 579 [2003]).[FN2]
Next, we are not persuaded by defendant's contentions that the search warrant was defective.The warrant application, together with the sworn statement of one informant that a gun was seenby him in defendant's apartment and the results of a controlled marihuana buy made by anotherinformant, provided "reasonable cause to believe" that contraband would be found within thepremises searched (CPL 690.40 [2]; seePeople v Bradley, 59 AD3d 806, 807 [2009]). The reliability of the informants wasadequately established at the suppression hearing, where it was revealed that each informant hadpreviously provided the police with accurate information (see People v Johnson, 66NY2d 398, 403 [1985]). Contrary to defendant's contention, the information on which theapplication was based was not stale considering that the controlled buy occurred on the same daythat the application was prepared and the other informant's statement was taken three days priorto that date.
Finally, we are not persuaded that the sentence imposed here is harsh and excessive,particularly considering defendant's extensive criminal history.[FN3]The fact that the sentence imposed after trial was greater than the sentence offered as part of apretrial plea agreement offer, which defendant rejected, is not proof that defendant was penalizedfor exercising his right to a jury trial (see People v Simon, 180 AD2d 866, 867 [1992],lv denied 80 NY2d 838 [1992]).[*3]
Peters, J.P., Kavanagh, McCarthy and Garry, JJ., concur.Ordered that the judgment is affirmed.
Footnote 1: The People thereafter droppedthe criminal sale of marihuana in the fourth degree charge and County Court dismissed the countcharging defendant with criminal possession of marihuana in the fourth degree.
Footnote 2: Defendant did not contest attrial the fact that he had been previously convicted of a crime (see Penal Law §265.02 [1]).
Footnote 3: We note that defendant wasreleased from incarceration in January 2009 and is currently under parole supervision.